Category Archives: Constitution

Minding Our Own Business

The brilliance of Tim Walz’ response to the GOP’s culture war is that it put a foundational element of the Bill of Rights into everyday language.

“Mind your own damn business” is a more direct expression of that underlying philosophy than the one that I used in my classroom–“Live and let live.” As I have posted innumerable times on this blog, the Bill of Rights, taken as a whole, is based on the libertarian premise that individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of someone else, and so long as they are willing to accord an equal liberty to their fellow citizens.

Government’s role is to protect our individual liberties while keeping the strong from abusing the weak.

Adherence to that philosophy means that even if you strongly disagree with your neighbor’s choice of religion or life partner or reading material, you mind your own damn business. You don’t try to get the government involved in the absence of harm to nonconsenting others. You don’t try to use the power of the state to impose your own religious or lifestyle preferences on your neighbor–and he doesn’t get to impose his on you.

Live and let live.

The current iteration of the GOP has utterly abandoned fidelity to that limited government principal. The culture war being waged by the MAGA Christian Nationalists is all about punishing–or at least burdening–life choices with which they disagree. The latest–and yes, weirdest–example is JD Vance’s insistence that women who don’t produce biological children should be socially and legally disfavored. (Vance has even proposed that people with children be rewarded by giving them “extra” votes.)

These very unAmerican approaches to policy disputes also tend to be delivered in the nastiest possible way. As the Bulwark recently noted,

Consider the latest weird statement by JD Vance to emerge. Vance disagrees with the education policies pushed by the American Federation of Teachers and its president, Randi Weingarten. He doesn’t like Weingarten’s political activities either. Fine. That hardly makes him unique among Republicans.

But apparently he can’t just say that. He has to attack her personally. Weingarten, it seems, doesn’t have children. And Vance has a view on that. What’s more, he has a view on the character and effectiveness of teachers who have kids and those who don’t, and has decided he’s “disturbed” by those who don’t.

One could ask, are the private lives of millions of teachers any of JD Vance’s damn business?

As the article proceeded to note, Vance obviously thinks so. But it isn’t just Vance–it’s a core belief of MAGA world that everything is their business.

For MAGA—as for other authoritarian movements of the left and right—the personal is the political. MAGA is about judging and disparaging other people, whole classes of people, whole groups of our fellow Americans…The routine slander of individuals and groups is part of the essence of the movement.

It is true that political disputes often get nasty. History is replete with examples of unfair accusations and various slanders leveled by candidates for office and their supporters. What the Bulwark reports in this particular case, however, gets to the essence of what is wrong with today’s GOP, and its devolution into White Christian Nationalism. There are a number of reasons to label that movement unAmerican, of course–any fair reading of the First Amendment and the Founders’ insistence on Separation of Church and State will provide the most obvious one. What is less obvious, but equally shocking, is the MAGA movement’s manifest belief that government should be able to dictate the personal behaviors of individuals even when those behaviors do not affect others.

So MAGA says government can force women to give birth. That government can prevent medical personnel from helping trans children. That government can remove library books that offend MAGA sensibilities, even though many other citizens want access to those books and no one is forcing the censors or their children to read them.

MAGA Republicans want government as busybody, despite the fact that such a role is entirely contrary to the foundational philosophy of this nation.

If, as I believe, real patriotism requires fidelity to our foundational philosophy– if it requires citizens to mind our own damn business in the absence of harm to unconsenting others– then MAGA culture warriors must be ranked as the most unpatriotic of all Americans.

We all need to listen to Tim Walz.

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No More Sun In The Sunshine State

When I taught the First Amendment, I sometimes shared what I called my “refrigerator theory” of free speech. I analogized bad ideas to those leftovers that migrate to the back of the fridge and begin to smell, and noted that–if those same leftovers had been placed in strong sunlight– they would be bleached of their ability to smell up the place.

The “marketplace of ideas” envisioned by the Founders was intended to ensure that ideas would be subjected to the strong sunlight of public debate, where they believed that bad ideas would lose their negative odors.

I thought about that (admittedly silly) analogy when I read that–ironically–the “Sunshine state” was trying to turn off the sunlight.

Hundreds of New College of Florida library books, including many on LGBTQ+ topics and religious studies, are headed to a landfill.

A dumpster in the parking lot of Jane Bancroft Cook Library on the campus of New College overflowed with books and collections from the now-defunct Gender and Diversity Center on Tuesday afternoon. Video captured in the afternoon showed a vehicle driving away with the books before students were notified. In the past, students were given an opportunity to purchase books that were leaving the college’s library collection.

This purging of disfavored ideas was part of Ron DeSantis’ continued assault on New College and its “liberal” ideas–an assault that has prompted the departure of over a quarter of its students and large numbers of its most respected faculty.

As usual, Heather Cox Richardson provided an excellent commentary on the situation.

The New College of Florida is in the news today for illustrating the logical progression of the idea that Republicans must protect the nation from those who would destroy it. The New College of Florida was at the center of Republican governor Ron DeSantis’s program to get rid of traditional academic freedom. He stripped the New College of its independence and replaced officials with Christian loyalists who tried to build a school modeled after those that Viktor Orbán’s loyalists took over in Hungary. New College officials painted over student murals celebrating diversity, suppressed student support for civil rights, and voted to eliminate the diversity, equity, and inclusion office and the gender studies program. Faculty fled the New College, and more than a quarter of the students dropped out. To keep its numbers up, the school dropped its admission standards. 

Yesterday, Steven Walker of the Sarasota Herald-Tribune reported that the school cleared out the Gender and Diversity Center, throwing the books it had accumulated into a dumpster. Officials said the books are no longer serving the needs of the college: “gender studies has been discontinued as an area of concentration at New College and the books are not part of any official college collection or inventory.” 

Republicans predictably sneer at those who increasingly compare such efforts of MAGA officials to events in Germany in the years leading up to the Nazi takeover, but the parallels are striking. The Holocaust Encyclopedia, among other histories, has reported on these purges of “unacceptable” ideas.

Beginning on May 10, 1933, Nazi-dominated student groups carried out public burnings of books they claimed were “un-German.” The book burnings took place in 34 university towns and cities. Works of prominent Jewish, liberal, and leftist writers ended up in the bonfires. The book burnings stood as a powerful symbol of Nazi intolerance and censorship.

“Intolerance and censorship” certainly characterize Ron DeSantis and his cohort–but I have to believe that contemporary efforts to suppress those who our neo-fascists disfavor will fail, and rather spectacularly. DeSantis may succeed in destroying a once-highly-regarded institution of higher education, but in a country with many other states and universities–not to mention the Internet– his destructive idiocy is simply unequal to the task.

To return to my analogy: when you leave leftovers in the back of your refrigerator too long, they smell up the whole place. Those who crafted the Free Speech clauses of the First Amendment understood that, when ideas are suppressed, they take on an odiferous life of their own. Deprived of the “sunlight” that is provided by robust public discussion and analysis, they fester below the surface, distorting and poisoning civil discourse. 

If the perspectives advanced in the books being discarded are harmful or incorrect or incompatible with America’s philosophy, DeSantis and his fellow censors should be able to make that argument in public. Clearly, they can’t.

Ultimately, censorship is an admission that those suppressing ideas are unable to counter them. They have no “sunlight” to offer.

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The Court’s Selective Originalism

Our current Supreme Court is dominated by regressive Justices who insist–as did the late Antonin Scalia–that they reach their conclusions by being “originalists.” Their definition of originalism differs rather substantially from mine–I’m firmly of the conviction that an authentic originalism requires fidelity to the values embraced by the Founders, while they insist that an originalist is bound by the constitutional text as it was understood at the time.

Permit me an example of why this is horse-pucky.

I used to ask my students what James Madison thought about porn on the internet. Obviously, Madison could not have conceived of the Internet–but he had very explicit beliefs about the value of free speech and the need to prevent government censorship. The current majority’s crabbed and dishonest “originalism”–if consistently pursued– would reserve free expression to communication methods in place during Madison’s time. A workable originalism protects speech from government censorship irrespective of the method of its transmission.

Of course, the majority doesn’t apply its version consistently, because it would be unworkable. Instead–as legal scholars have pointed out–they are selective in their application. (At least so far, they haven’t allowed government to censor radio, television, movies, and the internet–none of which the Founders could have envisioned.)

I thought about that very telling selectivity when I read an essay by Thom Hartmann about theocracy and the Dark Ages. I encourage you to read it in its entirety, but the part that struck me–and reminded me of the selectivity of Justices like Scalia, Thomas and especially Alito– were the sections detailing the Founders’ approach to Separation of Church and State.

Hartmann began by quoting extensively from John Adams. Adams was a practicing Christian, but was wary–to say the least– of government efforts to compel religiosity. Among the Adams quotes shared by Hartman was the following:

“Since the promulgation of Christianity, the two greatest systems of tyranny that have sprung from this original, are the canon and the feudal law. The desire of dominion, that great principle by which we have attempted to account for so much good and so much evil, is, when properly restrained, a very useful and noble movement in the human mind.

“But when such restraints are taken off, it becomes an encroaching, grasping, restless, and ungovernable power. Numberless have been the systems of iniquity contrived by the great for the gratification of this passion in themselves; but in none of them were they ever more successful than in the invention and establishment of the canon and the feudal law.”

Hartmann also quoted Jefferson, who wrote in his Notes on the State of Virginia:

“Reason and free enquiry are the only effectual agents against error. … Had not free enquiry been indulged, at the æra of the reformation, the corruptions of Christianity could not have been purged away.”

And he shared an often-cited Jefferson line: 

“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

Adams and Jefferson weren’t the only Founders who believed in separating church from state. As Hartmann notes,

George Washington refused to declare himself a Christian; Thomas Paine wrote an entire book embracing atheism; Ben Franklin famously fled Massachusetts as a teenager to escape the censorship and threats of imprisonment by religious leaders.

The essay points out that today’s White Christian Nationalist movement is both ahistoric and anti-American–a conclusion with which credible scholars entirely agree.

So here’s my question, aimed especially at Justice Alito (Thomas is simply corrupt, but Alito seems to be a true theocrat.) If you are really an originalist, bound by that doctrine to decide constitutional debates as the Founders would have understood them, why are you ignoring both the Constitutional text and the substantial contemporaneous evidence of their belief in the importance of Separation of Church and State?  

Hartmann’s essay focused on the Dark Ages, a thousand-year period introduced and maintained by virtue of the close alliance of church and government. He ends with a question:

Will we go down a nationalist religious road similar to that now being followed by Modi in India and Netanyahu in Israel? Could we end up as bad as Iran, Afghanistan, or 17th century New England? Will Republicans trigger a new Dark Age?

Or will we re-embrace the Renaissance and Enlightenment values and ideals of the Founders of this nation and hold to a secular democratic republic?

If the pseudo-originalists on today’s Court prevail, we won’t like the answer to that question.

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A “Faith Based” Future?

I’m not sure when people–okay, mostly Christian people–began using the term “faith-based” to mean “religious,” but like so many other euphemisms being thrown around these days, the term is inaccurate. Many of the earth’s religions aren’t “faith-based,” they are works based, focused upon behavior rather than belief. The term “Judeo-Christian” is a similar contrivance, a term that Christianizes in what may–or may not–have originally been an effort to appear religiously inclusive.

Whatever the original motivation for these terms, Project 2025 makes it quite clear that the “faith” that makes one entitled to call oneself an American is Christianity, and that any lingering “Judeo” part of “Judeo-Christian” is irrelevant.

A report in The Guardian focuses upon that element of Project 2025, using a current discriminatory law in Tennessee as an example of the approach favored by that document. In Tennessee, a Jewish couple who wanted to foster a child were rejected by a Christian state-funded foster care placement agency that informed them it only provided adoption services to “prospective adoptive families that share our belief system”. 

Under First Amendment jurisprudence as it has existed thus far, taxpayer dollars cannot be used to favor some religions over others, or–for that matter–religion over non-religion. (Granted, Justice Alito is probably salivating at the prospect of overturning that long line of precedents…) If Trump is elected, however, and the agenda proposed in Project 2025 begins to be realized, Americans can kiss genuine religious liberty good-bye. 

The predicament facing the Rutan-Rams could become more common under a second Trump administration. Project 2025, a 900-plus page blueprint for the next Republican administration and the policy brainchild of the conservative Heritage Foundation, contains an explicitly sympathetic view toward “faith-based adoption agencies” like the one that rejected the Rutan-Rams, who are “under threat from lawsuits” because of the agencies’ religious beliefs.

Project 2025’s Adoption Reform section calls for the passage of legislation to ensure providers “cannot be subjected to discrimination for providing adoption and foster care services based on their beliefs about marriage”. It also calls for the repeal of an Obama-era regulation that prohibits discrimination against prospective parents and subsequent amendments made by the Biden administration.

According to a professor of theology and religious studies at Villanova University, quoted in the article, the image of family portrayed by Project 2025 is “blatantly exclusionary. The Christian nationalist plan rejects unmarried parents, single parents and LGBTQ+ families.”

Project 2025 is divided into four broad pillars, the first of which is to “restore the family as the centerpiece of American life and protect our children”. A conservative vision of family pervades the document, and the authors call on policymakers “to elevate family authority, formation, and cohesion as their top priority and even use government power, including through the tax code, to restore the American family”.

The plan envisions upholding “a biblically based, social science-reinforced definition of marriage and family”. It would remove nondiscrimination roadblocks governing faith-based grant recipients, such as the agency that denied the Rutan-Rams. The authors argue that “heterosexual, intact marriages” provide more stability for children than “all other family forms”. In addition to calling for the passage of the Child Welfare Provider Inclusion Act, which would allow adoption and foster care agencies to make placement decisions based on their “religious beliefs or moral convictions”, it also calls on Congress to ensure “religious employers” are exempt from nondiscrimination laws and free to make business decisions based on their religious beliefs.

That last paragraph sounds exactly like a speech by Indiana Congressman Jim Banks, currently running for U.S. Senate. Banks–and his clone Micah Beckwith, the Republican candidate for Lieutenant Governor–who represent the core of the MAGA effort to remake the United States into a White Christian theocracy.

Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty and author of a book titled How to End Christian Nationalism, contends that the scale and reach of Project 2025 pose a far greater danger to democracy than a patchwork of state laws.

“What’s different about Project 2025 is the sweeping nature of its plan,” said Tyler. “It would really rewrite the federal government and change policies in so many different areas at once in a way that would hasten our journey down that road to authoritarian theocracy.”

Trump’s effort to distance himself from Project 2025 runs into several inconvenient facts: his choice of a Vice-Presidential candidate who wrote the document’s introduction, the number of cronies who participated in its drafting, and the GOP’s official platform, which echoes several of its themes.

When President Biden says that America’s constitutional democracy is on the ballot in November, he wasn’t engaging in hyperbole.

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San Diego Shames Supreme Court

I’ve previously posted about a number of recent Supreme Court cases that have ignored long-time precedents, cherry-picked history, or otherwise done violence to the philosophical basis of the Constitution and the rule of law. One that I haven’t previously addressed falls into a somewhat different category: it’s just wrong and mean-spirited.

The case–Grants Pass v. Johnson–involved an Oregon city that had passed ordinances prohibiting people from sleeping outside in public using a blanket, pillow or cardboard sheet to lie on, even if those people have no other option, i.e., are homeless.

Those challenging the ordinances relied upon the earlier case of Robinson v. California, which had held that it is “cruel and unusual”  to criminalize a person’s status, but the majority held that Robinson didn’t apply–that the ordinances penalize behavior rather than status. As a result of that analysis, municipalities can do what Grants Pass did, and subject unhoused people to hundreds of dollars in fines and even jail time for sleeping outside, even when the city admittedly lacks enough shelter beds for them.

The decision reversed a far more reasonable opinion by the Ninth Circuit; that Court held that punishing unhoused people for sleeping in public when they have no access to shelter violates the Eighth Amendment’s protection against cruel and unusual punishment.

The ACLU submitted a brief on behalf of the challengers, and issued a statement on the decision.

“It is hard to imagine a starker example of excessive punishment than fining and jailing a person for the basic human act of sleeping,” said Scout Katovich, staff attorney in the Trone Center for Justice and Equality. “As Justice Sotomayor’s dissent powerfully acknowledged, sleep is a biological necessity, not a crime. We cannot arrest our way out of homelessness, and we will continue litigating against cities that are emboldened by this decision to treat unhoused people as criminals.”

The American Civil Liberties Union submitted a friend-of-the-court brief arguing that punishing unhoused people for sleeping outside when they lack access to shelter violates the Eighth Amendment protection against cruel and unusual punishment. As the brief highlights, the original intent and meaning of the Eighth Amendment and its application in more than a century of Supreme Court cases make clear that the government cannot impose punishment that is disproportionate to the crime.

There is obviously a great deal more that can be said about this decision, but the practical reality is that it allows local governments to criminalize a social problem. Allowing municipalities to punish homelessness does absolutely nothing to ameliorate the problem. (For that matter, allowing fines to be assessed is asinine; people who cannot afford a bed don’t have resources to pay fines.)

San Diego takes a very different, and far smarter approach to the issue. People who are unsheltered or living in their cars can access parking lots that have been modified to provide more than just a place to stay.

San Diego currently operates four lots where people living in cars or RVs can park overnight, with access to restrooms, services and treatment.

The H Barracks location adds 190 parking spaces, which will nearly double the capacity of the city’s safe parking program.

It’ll be located on five acres between the airport and Liberty Station, and it would serve the large population of people living in oversized vehicles in the Peninsula area.

 The pet-friendly lot will be open overnight — 6pm-7am — with onsite security, as well as bathrooms and showers, according to the report.

The lots provide onsite services for case management, housing, health care, mental and behavioral health, plus substance-abuse treatment resources, and patrons are prohibited from drug and alcohol use. Registered sex offenders are not allowed.

The Supreme Court’s tone-deaf opinion effectively allowing municipalities to criminalize homelessness is a classic example of hitting people when they’re down. As a matter of law, it is fatally flawed; as a matter of policy, it’s clueless.

Calling homelessness a “behavior” rather than a status suggests that it is chosen–that it represents a decision made by an individual to forego habitation. Allowing local officials to punish unhoused people is simply cruel. As numerous critics of the decision have pointed out, governments cannot punish their way out of homelessness and poverty. What is needed is evidence-based solutions.

Officials in San Diego obviously recognize that. It will be interesting to see whether that city’s innovative approach results in a reduction of the number of homeless, and whether it will develop follow-up measures aimed at more permanent solutions.

Meanwhile, We the People really need to do something about our rogue Supreme Court…

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